United States v. Marrero-Perez, 914 F.3d 20

Marrero was found in Puerto Rico with two loaded pistols; indicted for two counts under 18 U.S.C. § 922(g) and pled guilty to both counts.
PSR recommended total offense level 17, Criminal History Category IV, and a Guidelines range of 37–46 months; PSR also listed numerous prior arrests and convictions and suggested an upward departure or variance.
At sentencing the district court stated Marrero’s record "substantially underrepresents" his criminal history and pronounced a 72-month variant sentence (above both the PSR range and the government’s proposed 60-month variance).
Marrero did not object at sentencing to the PSR’s recitation of arrests or to materials the probation officer apparently provided to the court; he later appealed asserting the judge relied on arrests without convictions and on ex parte materials.
The First Circuit held that courts should not give weight to mere arrests lacking convictions or independent corroboration, and found Marrero made a sufficient showing that the district judge relied on such arrests and possibly on undisclosed ex parte materials.
The court vacated the sentence and remanded for resentencing, directing the district court to clarify reliance on arrests and the basis and impact of any ex parte material.

Issue	Marrero's Argument	Government's Argument	Held
Whether sentencing judge improperly relied on prior arrests that did not result in convictions	Judge relied on arrests listed in PSR to justify upward variance; arrests are not proof of guilt	Sentencing may rely on convictions and other reliable evidence; many convictions supported a variance	Court: Reliance on mere arrests without corroboration is error; Marrero showed judge likely relied on arrests, warranting remand
Whether ex parte materials (outstanding Delaware warrants) were improperly considered without disclosure	Probation officer provided warrants ex parte; defense lacked opportunity to test them	Probation officers may communicate with the court; defense had or could have requested the material	Court: If new factual material was presented ex parte and relied on, nondisclosure is error; remand to clarify and allow testing
Effect of failure to object at sentencing (plain-error review)	Failure to object should not preclude relief because error was obvious and affected rights	Lack of contemporaneous objection limits review and favors upholding sentence	Court: Plain-error test applies but found error obvious and prejudicial enough to remand to avoid protracted collateral litigation

United States v. Watts, 519 U.S. 148 (holding sentencing may consider conduct proved by preponderance even if not resulting in conviction)
Gall v. United States, 552 U.S. 38 (deference to district court’s individualized sentencing determination)
Rondón-García v. United States, 886 F.3d 14 (First Circuit warning against equating arrests with guilt)
Molina-Martinez v. United States, 136 S. Ct. 1338 (an obvious sentencing error can "set the wrong framework" requiring relief)
United States v. Bramley, 847 F.3d 1 (probation officer may advise the court but new factual material must be disclosed to defense)